1. Definitions.
“Access” means the right to log on to Profound Strategy Programs through ASP Servers and using either an Internet browser or the Profound Strategy User Interface.
“Application Service Provider” (“ASP”)” means a company that offers individuals or enterprises access over the Internet to applications and related services that would otherwise have to be located on their own personal or enterprise computers and includes Profound Strategy’s role as a provider of software application services via a server presence on the world wide web to Profound Strategy Customers who Access Profound Strategy’s Program ASP Servers and/or Profound Strategy ASP Servers from a computer that is connected to the Internet.
“Edited Interface” means Profound Strategy Customer Data. An interface (on-screen windows and forms) becomes an Edited Interface when the Profound Strategy Customer directs the interface functions through an interface editor.
“Intellectual Property Rights” means any and all patents, patent rights, trademarks, service marks, trade names, trade dresses, copyrights, works of authorship and trade secrets, and all registrations and applications of all of the foregoing, and any and all other intellectual property and industrial property rights whether registered or unregistered.
“Profound Strategy” means Profound Strategy, LLC, and any person or entity to which this Agreement is assigned.
“Profound Strategy Customer” means (i) a customer of Profound Strategy which has entered into a Profound Strategy Service Agreement; or (ii) any customer of an Profound Strategy Customer (in a successive downward chain, e.g. principals of an Profound Strategy ), provided that in all cases a Licensee Customer Agreement is in effect at the relevant time; or (iii) any Permitted User as defined herein.
“Profound Strategy Service Agreement” means (i) an agreement between Profound Strategy and its customer pursuant to which such customer purchases services from Profound Strategy including a limited access license to Access the Profound Strategy ASP Service consistent with these Terms and Conditions of Use; and (ii) any further agreement between a Profound Strategy Customer and its Permitted Users.
“Profound Strategy Customer Data” means the information entered by Permitted Users through licensed software interfaces and stored in the database on Profound Strategy’s servers;
“Profound Strategy User Interface” means the software user interface developed by or on behalf of Profound Strategy for Profound Strategy’s Customers to facilitate access to and uploading of data into the Profound Strategy ASP Service, and which includes acknowledgment and acceptance of the Profound Strategy Terms and Conditions of Use.
“Login” means an identifying phrase that when combined with an authorized Password will permit access to Profound Strategy Programs, Products, and Services. Permitted Users may choose their own Logins, but each Login must conform to syntax rules required by Profound Strategy.
“Other Profound Strategy Products” means all technologies, software or other products and/or software, ASP or other services developed or owned by Profound Strategy or which Profound Strategy otherwise has the right to license or sell, and as to each whether now existing or hereafter owned or developed.
“Password” means a key code that when combined with an authorized Login will permit access to Profound Strategy Programs, Products and Services. Permitted Users will choose their own Passwords, but each Password must conform to syntax rules required by Profound Strategy.
“Permitted User” means individuals employed or retained by Profound Strategy Customers who have been identified to Profound Strategy by Profound Strategy Customers and given a password to Access the Profound Strategy Program, Products, and Services.
“Software” means the machine-readable, compiled version of the object code only for the ASP software for the Profound Strategy Programs, together with the associated profiles, drivers, and any updates and upgrades thereto developed by or on behalf of Profound Strategy.
“User Documentation” means any user manuals or instructions (in electronic form or otherwise) prepared by Profound Strategy containing a description of how to Access the Profound Strategy ASP Service, use the Profound Strategy ASP Service to generate reports, to store certain customer profiles on the Profound Strategy Program ASP Servers, and to download Profound Strategy Program reports for storage or printing.
“Profound Strategy ASP Service” means the ASP service provided by Profound Strategy that enables Access from the internet to Profound Strategy Programs to, among other things, upload data to generate and download reports and solutions, under the service level terms set forth on Customer’s Campaign Page, as may be changed by Profound Strategy from time to time.
“Profound Strategy Products” means any goods licensed to Customer by Profound Strategy, including application or software downloads from www.profoundstrategy.com, if any, and Profound Strategy’s ASP Service.
“Profound Strategy Program ASP Servers” means servers (wherever located in the world) licensed or controlled by Profound Strategy and used to provide Access to the Profound Strategy ASP Service.
“Profound Strategy Programs” means any web-based software platform designed to assist customers in the access, ordering, and review of Profound Strategy ASP Services.
“Profound Strategy Terms and Conditions of Use” means the terms and conditions for use of the Profound Strategy Programs, and as may be changed by Profound Strategy from time to time.
“Site” means the Profound Strategy website available at the registered domain name, www.profoundstrategy.com, and any additional webpages accessible through or affiliated with the Profound Strategy domain name.
2. Acknowledgment of Terms Profound Strategy, LLC (“Profound Strategy”), an Illinois corporation, offers Profound Strategy Application Service Provider Services (“ASP Services”), which include providing access to and the operation of Profound Strategy Programs. The dynamically generated portions of this website (the “Site” or “www.profoundstrategy.com”) are powered by programmatic and database constructs created by Profound Strategy or its Licensor(s) on behalf of Profound Strategy. Access to the Site for the provision of the Profound Strategy ASP Service is governed by these Terms and Conditions of Use (the “Terms”) and those terms contained in the Profound Strategy Service Agreement. Your use of the functionality and/or content of the Site and downloading of its pages is allowed because of your express agreement to comply with these Terms and those terms of your Service Agreement with Profound Strategy. If the Terms hereof conflict with the terms of the Service Agreement, the terms of the Service Agreement shall control. These Terms, along with the terms of any Service Agreement and the Customer Campaign Page, constitute the entire agreement between the parties regarding the terms and conditions of the use of the Site and the Profound Strategy ASP Products.
3. Branding and Third Party Vendors. While the Site may be “branded” or marketed under a different name than the actual owner of the software code and may be delivered to your browser by way of a different domain name, the Terms shall remain fully in force with respect to Profound Strategy and Profound Strategy Customer. Additional terms of use may be applicable resulting from your Profound Strategy Service Agreement which has authorized your access to the Site. You understand that Profound Strategy may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
4. Amendments. These Terms may be amended at any time, at the discretion of the Profound Strategy, without prior notice to you. All Terms will be posted on the Site and you agree to review the Terms on the Site on a regular basis in order to keep apprised of additions and/or changes made to these Terms subsequent to your agreement. Profound Strategy may, from time to time, and/or as a result of significant changes to this statement, require you, the user, to expressly agree to the Terms again. Continued use of the Site and Profound Strategy ASP Services will constitute your consent to such changes.
5. Data Updates. While efforts are made by Profound Strategy to keep the data contained within this Site as current as possible, it is imperative that pricing be verified with Profound Strategy during ordering. Pricing data, as provided by each discount provider and/or contained within this Site, is subject to change by the provider or vendor without notice to the Profound Strategy Customer and/or in accordance with the terms of your agreement with Profound Strategy. Prices may or may not include applicable taxes. Contact Profound Strategy directly for information related to applicable taxes. Other Profound Strategy-related fees and expenses may apply. See the pricing details and contact Profound Strategy directly for details.
6. Copyrights, Trademarks, and Intellectual Property. Please refer to the Site’s copyright page for information related to the ownership of programming and content contained within the Site. The programs and programmatic constructs are all copyrighted by Profound Strategy or its licensor, if any. While you visit our Site, please remember that all of the content published herein, including articles, photos, images, graphics, audio and video clips and other content, is the property of their respective owners. The collective content of our message boards and online forums, should such functionality be adopted, are copyrighted as a collective work under the United States copyright laws. Republishing rights questions can be directed to:
Profound Strategy, LLC
155 North Wacker Drive
Suite 4250A
Chicago, Illinois 60606
7. User Contributed Content. The Site may also contain some user-contributed content, including, but not limited to, message boards and online forums; product and service reviews; chats and chat transcripts; and online calendars. The statements, opinions and views expressed in user-contributed areas as provided by individuals contributing such content is done so under a non-exclusive, unrestricted, fully-paid license to Profound Strategy to allow it to publish or republish such content. Profound Strategy makes no intellectual property claim to the user contributed content. Profound Strategy makes no claims to the veracity or usefulness of material submitted and published by individual users on the Site. The Site provides the tools for the creation of such content and reserves the right to republish and redistribute such content on the Site, as well as in print. Likewise, the opinions, advice and all other information expressed on our forums or elsewhere on the Site represent the contributor’s own views and not necessarily those of Profound Strategy. Profound Strategy does not endorse and is not responsible for statements, content, advice or opinions made by anyone, including user-contributed content, or statements other than those expressly authorized by Profound Strategy in writing.
8. Removal of User-Contributed Content. Profound Strategy reserves its right to remove any and all user-contributed content that it deems, in its sole discretion, to be offensive, unlawful, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any other party’s intellectual property rights.
9. Backups. By using the ASP Service you may electronically store a reasonable portion of the Site’s content for your reasonable commercial use by making a single electronic copy on your computer’s hard drive, a single copy on a diskette or a single copy in printed form. You also agree that you will not store or archive a significant portion of the content or create a database using the content.
10. No Violation. You agree not to violate the intellectual property laws protecting the Profound Strategy Programs, Profound Strategy Products and the content accessible through the Site. This means you agree not to copy, modify, publish, transmit, create derivative works from, transfer, sell or display the content, including logos, trademarks or service marks, or otherwise violate the proprietary rights of Profound Strategy, its licensor(s), or others. You will not reuse, republish or otherwise distribute the content or any modified or altered versions of it, whether over the Internet or otherwise, and whether or not for payment, without the express written permission of Profound Strategy or the copyright or other intellectual property right holder. You will cooperate promptly and completely with any reasonable request by Profound Strategy related to an investigation of infringement of copyright or other proprietary right. In the event that Profound Strategy reasonably believes a breach of these Terms is threatened or has actually occurred, Profound Strategy reserves its right to seek the assistance of a court of competent jurisdiction to prevent any such breaches and reserves its right to deny the end-user’s access to the Site.
11. Privacy Policy. Profound Strategy takes your personal privacy seriously. We do collect some information about you when you register for certain Profound Strategy ASP Services (with hosting companies) or participate in a user survey in order to provide you with the best possible experience on our Site. We will not disclose such personal information about you without your advance permission, unless we have a good faith belief that it is reasonably necessary to comply with the law, to enforce these Terms or the terms of the Service Agreement. Occasionally, we may disclose user information to our prospective partners, advertisers and others, but only in a form that does not identify the individual through the personal information that is disclosed. Other services and information providers accessible through the Site have their own policies about using personal information and you should contact them directly for their policies.
12. Adult Only Use of the Site. Registered users of the Site must be of age 18 years or older.
13. Accessibility. Profound Strategy does not guarantee or warrant that any files available for downloading will be free of defects or that the Site will be timely or uninterrupted. While we take reasonable steps to ensure that no viruses, worms, Trojan horses or other destructive properties are present, the entire risk as to the quality, security, availability and performance of the Site and the accuracy and completeness of any information is with the viewer or user of the Site.
14. Warranties and Limitation of Liability.
(a) Authority. Each party represents and warrants that it has full corporate power and/or authority to enter into this Agreement. Each party further represents that it has not entered into nor will it enter into any agreements that would conflict with its obligations hereunder or render it incapable of satisfactorily performing hereunder.
(b) Representations and Warranties by Profound Strategy.
(i) PROFOUND STRATEGY WARRANTS THAT THE PROFOUND STRATEGY PROGRAM AND THE PROFOUND STRATEGY ASP SERVICE, WHEN USED IN A MANNER CONSISTENT WITH TERMS AND CONDITIONS OF USE, SHALL PERFORM CONSISTENT WITH USER DOCUMENTATION, IF ANY, IN CONNECTION WITH ACCURATE AND COMPLETE APPROVED CUSTOMER DATA PROVIDED BY PROFOUND STRATEGY OR PROFOUND STRATEGY CUSTOMER AND WHEN USED IN CONJUNCTION WITH A PROPERLY DESIGNED AND FUNCTIONING PROFOUND STRATEGY USER INTERFACE.
(ii) THE PROFOUND STRATEGY PROGRAM AND THE PROFOUND STRATEGY ASP SERVICE DO NOT INFRINGE ANY REGISTERED TRADEMARK, REGISTERED SERVICEMARK OR COPYRIGHT OR MISAPPROPRIATE ANY TRADE SECRET OF A THIRD PARTY, AND TO ITS KNOWLEDGE AFTER REASONABLE RESEARCH DO NOT INFRINGE THE PATENT OF ANY THIRD PARTY.
(iii) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PROFOUND STRATEGY PROGRAM AND THE PROFOUND STRATEGY ASP SERVICE ARE PROVIDED “AS IS” AND “WHERE AVAILABLE” AND NO WARRANTY OR ASSURANCE, EXPRESS, IMPLIED, OR STATUTORY, IS GIVEN BY PROFOUND STRATEGY WITH RESPECT TO SOFTWARE, SERVICES OR ANY OTHER MATTER, INCLUDING, WITHOUT LIMITATION (AND PROFOUND STRATEGY SPECIFICALLY DISCLAIMS) ALL WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND THE WARRANTY OF ACCURACY OF ANY AND ALL DATA SUPPLIED BY THIRD PARTIES TO PROFOUND STRATEGY. FURTHERMORE, EACH AND EVERY END USER OF THE PROFOUND STRATEGY PRODUCTS UNDERSTANDS AND AGREES AND HEREBY WAIVES ANY CLAIM AGAINST PROFOUND STRATEGY BASED ON THE END USER’S OWN OBLIGATIONS UNDER FEDERAL AND STATE LAWS. PROFOUND STRATEGY DOES NOT WARRANT THAT (I) THE SERVICE WILL MEET YOUR SPECIFIC REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SERVICE WILL BE CORRECTED.
(iv) PROFOUND STRATEGY REPRESENTS AND WARRANTS THAT THE PROFOUND STRATEGY USER INTERFACE SHALL PERFORM IN A MANNER CONSISTENT WITH THE SPECIFICATIONS PROVIDED BY PROFOUND STRATEGY, THAT UPON CREATION THEREOF NO PARTY OTHER THAN PROFOUND STRATEGY WILL HAVE ANY OWNERSHIP RIGHT IN OR TO THE COPYRIGHT TO THE PROFOUND STRATEGY USER INTERFACE, AND THAT THE PROFOUND STRATEGY USER INTERFACE WILL NOT INFRINGE ANY COPYRIGHT, TRADE SECRET, OR TO PROFOUND STRATEGY’S KNOWLEDGE UTILIZATION OF THE PROFOUND STRATEGY USER INTERFACE AND ITS COMBINATION WITH THE APPLICABLE ASP PROGRAMS WILL NOT INFRINGE ANY PATENT OF ANY THIRD PARTY.
(c) Disclaimer. OTHER THAN THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY OR ANY PERSON OR ENTITY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT.
(d) Limitation of Liability. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, PROFOUND STRATEGY SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OR EXPENSES RESULTING FROM UNAUTHORIZED USE OF THE PROFOUND STRATEGY PROGRAMS, USE OF THE PROFOUND STRATEGY PRODUCTS OR ASP SERVICES INCONSISTENT WITH THE USER DOCUMENTATION, OR FOR INACCURATE DATA PROVIDED BY PROFOUND STRATEGY CUSTOMERS. IN NO EVENT SHALL PROFOUND STRATEGY’S LIABILITY EXCEED THE AMOUNT PAID BY PROFOUND STRATEGY CUSTOMER TO PROFOUND STRATEGY IN THE TERM IN WHICH THE CLAIM AROSE LESS ANY AMOUNT DUE OR WHICH PROFOUND STRATEGY CLAIMS IS DUE AND UNPAID FOR SUCH PERIOD. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PROFOUND STRATEGY CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE PROFOUND STRATEGY PRODUCTS OR SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (V) OR ANY OTHER MATTER RELATING TO THE PROFOUND STRATEGY PRODUCTS OR SERVICE
(e) Disaster Recovery: Profound Strategy will make commercially reasonable efforts to create and protect backup copies of Profound Strategy Customer data as per the service level chosen by Profound Strategy Customer, if any, and documented on the Customer Campaign Page. Subject to the above, Profound Strategy will have no liability or duty of indemnification related to lost or corrupt Profound Strategy Customer Edited Interfaces or Profound Strategy Customer data of any kind that is the property of Profound Strategy Customer beyond a refund of service level fees paid by the Profound Strategy Customer under the terms of the Profound Strategy Service Agreement. Profound Strategy Customer indemnifies Profound Strategy from any and all liability related to lost or corrupt Profound Strategy Customer Edited Interfaces or Profound Strategy Customer data of any kind resulting in part or in whole from third-party software or networking goods or services or from actions or events outside of Profound Strategy’s reasonable control.
15. INDEMNIFICATION. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS PROFOUND STRATEGY AND ITS OWNERS, EMPLOYEES AND AGENTS AGAINST ANY AND ALL LIABILITY, LOSS, CLAIMS, DAMAGES, COSTS AND/OR ACTIONS (INCLUDING ATTORNEY’S FEES) BASED UPON OR ARISING OUT OF ANY BREACH BY YOU OF YOUR OBLIGATIONS UNDER THE TERMS. PROFOUND STRATEGY RESERVES THE RIGHT TO DEFEND ANY SUCH CLAIM, AND YOU AGREE TO PROVIDE US WITH SUCH REASONABLE COOPERATION AND INFORMATION AS WE MAY REQUEST.
16. Service Level Fees/Cost. Much of the functionality and content contained within the Site is available for use and viewing only by means of paid service level fees. Unauthorized use of functionality and content designated as accessible only by paid subscription is prohibited. Any attempt to obtain unauthorized access to subscription reserved functionality and content represents breach of this Agreement.
17. JURSISDICTION. These Terms are to be governed and interpreted under the laws of the State of Illinois, without regard to its conflict of laws provisions. Any action brought in connection with these Terms shall be filed and exclusively venued in the state or federal courts located in McHenry County, Illinois.
18. Violations/Termination of Account. Any violation of the Terms by you may constitute grounds for Profound Strategy’s termination of your account and access to the Site. Profound Strategy’s failure to enforce any of the Terms in the past shall not constitute a waiver of its rights to enforce the Terms in the future.
19. Account Terms/Logins. To register with and access Profound Strategy, you must be an human being acting individually or by and through a legal person or entity. Accounts registered by “bots” or other automated methods are not permitted. You must provide your legal full name, a valid email address, and any other information requested in order to complete the signup process. Your login may only be used by one person – a single login shared by multiple people is not permitted without the express written consent of Profound Strategy. You may create separate logins for as many people as you would like. You are responsible for maintaining the security of your account and password. Profound Strategy cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You are responsible for all content posted and activity that occurs under your account (even when content is posted by others who have accounts under your account). You may not use the Service for any illegal or unauthorized purpose or to violate the rights of any third party or of Profound Strategy.
20. Payment. Pricing is subject to change based on the terms of your Service Agreement and pricing terms appearing on your Customer Campaign Page. Profound Strategy reserves the right to require a valid credit card for paying accounts. Unless otherwise agreed between Profound Strategy and Customer, you will be billed monthly starting on the 30th day after your account was initially created. The Profound Strategy ASP Service is billed in advance on a monthly basis and is non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) income taxes incurred by Profound Strategy.
21. Cancellation. You are solely responsible for properly canceling your account. An email or phone request to cancel your account is not considered cancellation. You can cancel your account at any time by clicking on the Account link in the global navigation bar at the top of the screen. The Account screen provides a simple no questions asked cancellation link. If you cancel the Service before the end of your current paid up Term (as set forth on the Customer’s Campaign Page), your billing cancellation will take effect immediately but you will still be responsible for all payments due under the Term. Profound Strategy, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Service or Site, for any violation of the Terms or Service Agreement at any time. Such termination of the Service will result in the deactivation of your Account or your access to your Account, and the forfeiture and relinquishment of all content in your Account.
22. Content from Site/Content to Site. You understand that the technical processing and transmission of the Service, including your content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. You must not upload, post, host, or transmit unsolicited email, SMSs, or “spam” messages. You must not transmit any worms or viruses or any code of a destructive nature. If your bandwidth significantly exceeds the average bandwidth usage (as determined solely by Profound Strategy or its hosting company) of other Profound Strategy customers, we reserve the right to immediately disable your account or throttle your file hosting until you can reduce your bandwidth consumption.
23. Mollom Spam Protection. Use of forms and comment submission on Profound Strategy.com is also subject to Mollom’s web service privacy policy.